Murray and Gallagher
[2009] FMCAfam 276
•30 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MURRAY & GALLAGHER | [2009] FMCAfam 276 |
| FAMILY LAW – Interim proceedings – unilateral relocation of child by mother – application by carer who is not related for recovery of child. |
| Family Law Act 1975, ss.64B(2)(c), 60B, 60CC(4), 60CC, 60CA, 60CC(3)(f), 60CC(3)(e), ,60CC(3)(d), 60CC(3)(b), 60CC(3)(a), ,60CC(2)(b), 60CC(2)(a) |
| Goode & Goode [2006] FLC93-286 Re Evelyn (1998) FLC 92-807 Dennett & Norman [2007] FamCA 57 D & F (unreported) (2001) FamCA 382 Souter & Meagher & Anor [2007] FamCA 18 Morgan & Miles [2007] FamCA 1230 Cowling & Cowling (1998) FLC 92-801 Kelleher & Anderson (2007) FamCA 137 |
| Applicant: | MS MURRAY |
| Respondent: | MS GALLAGHER |
| File Number: | HBC 208 of 2009 |
| Judgment of: | FM Baker FM |
| Hearing date: | 26 March 2009 |
| Date of Last Submission: | 26 March 2009 |
| Delivered at: | Hobart |
| Delivered on: | 30 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fitzgerald |
| Solicitors for the Applicant: | Legal Aid Commission of Tasmania |
| Counsel for the Respondent: | Ms Pearce |
| Solicitors for the Respondent: | Women’s Legal Service (SA)Inc |
IT IS NOTED that publication of this judgment under the pseudonym Murray & Gallagher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 208 of 2009
| MS MURRAY |
Applicant
And
| MS GALLAGHER |
Respondent
REASONS FOR JUDGMENT
Background
This is an application by Ms Murray in respect of the child [X] born in 2001. The applicant is not a parent or relative of the child. She has cared for her since November 2007.
The mother of the child, Ms Gallagher, is the respondent.
The applicant is seeking final orders that [X] live with her and that [X] spend such time with the respondent as agreed or ordered by the Court. She is seeking interim orders that [X] live with her, that she have the sole responsibility for the day to day care welfare and development of the child and that the child’s time with the respondent be reserved. She seeks a recovery order to return [X] to her care and other injunctive orders, as well as the appointment of an Independent Children’s Lawyer.
The applicant relies on her affidavit filed on 18 March 2009 and two affidavits of Ms G filed 23 March 2009 and 25 March 2009.
The respondent seeks, by way of final orders, a sole parental responsibility order and that [X] live with her. She seeks interim orders that she have sole parental responsibility, that [X] live with her and that she have liberty to relocate to South Australia with the child.
The respondent relies on her affidavit filed 24 March 2009 and the affidavit of Ms H filed 24 March 2009. She is the program manager of Teen Challenge, South Australia.
Relevant Law
The applicant seeks interim (parenting) orders. The principles to be applied on the determination of a parenting order application are set out in Goode & Goode.[1] I am required to identify the competing proposals, identify the issues in dispute and identify the agreed or uncontested relevant facts.
[1] [2006] FLC93-286
Section 60CA of the Family Law Act 1975 makes it clear that in deciding whether or not to make a parenting order in relation to a child “the court must regard the best interests of the child as the paramount consideration.” To determine what is in the child’s best interests, I am required to consider the primary and secondary considerations in section 60CC of the Act. Firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents, and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are a number of additional considerations in section 60CC(3) to which I must have regard, insofar as they are relevant. I must also have regard to section 60CC(4) and must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. I must also have regard to section 60B which sets out the objectives of Part V11 of the Family Law Act 1975, and the principles underlying those objectives. Section 60B provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are set out in s.60B(2).
Counsel for the applicant referred me to Re Evelyn[2] at page 85,106 and submitted that there is no presumption in favour of the parent. He also referred me to Dennett & Norman[3] in which the Full Court followed Re Evelyn. The Full Court went on to refer to D & F[4]. In paragraph 56 of that case, the Court said:
“There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child's welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.”
[2] (1998) FLC 92-807
[3] [2007] FamCA 57
[4] (unreported) [2001] FamCA 382
Nethertheless, whilst there is no presumption in favour of a parent, Cronin J in Souter & Meagher & Anor[5] agreed with Counsel for the Independent Children’s Lawyer, who pointed to the fact that the principle objects of Part V11 of the Family Law Act 1975 refer to parents and it was the intention of the legislature to place the onus on parents to undertake those responsibilities primarily. I agree with Cronin J’s view.
[5] [2007] FamCA 18
I am also required to decide whether the presumption in s.61DA should apply or be excluded by reason of abuse or family violence, or rebutted as not in the best interests of the child. If the presumption does not apply or is rebutted, I must determine what order would be in the child’s best interests. This presumption is limited to parents. This does not mean that a court can not make an order for a person other than a parent to have parental responsibility – s.64B(2)(c). As the presumption does not apply in this case, I must determine what order to make in the best interests of the child, applying ss.60CC and 60B.
In the case of Morgan & Miles[6] which involved a unilateral relocation, Boland J said:
“It appears to me that the very difficult issues in cases involving a relocation … make it highly desirable that, except in cases of emergency, the arrangements which would be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.”
At paragraph 86, Her Honour said:
“The legislation, including the matters referred to in Goode’s case, requires the consideration of s.60CC, s.61D and s.60DAA in dealing with all interim applications for parenting orders including applications involving a relocation, or where an unauthorised relocation has occurred.”
[6] [2007] FamCA 1230
Counsel for the applicant also relied on Cowling & Cowling[7]. The Full Court in Goode & Goode[8] considered whether the principles in Cowling & Cowling remain applicable after the introduction of the amending act, in particular paragraph 22 in Cowling which talks about a “well settled” environment. The Full Court determined the amending Act had effected change which required consideration of that paragraph.
“The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”
[7] (1998) FLC 92-801
[8] op cit
In respect of interim parenting proceedings, where affidavits contain disputed matters of fact, a determination of those facts can not and should not be made until after cross-examination.[9]
[9] Kelleher & Anderson [2007] FAMCA 137 at para.53
Matters not in Dispute
From [X]’s birth until November 2007, the respondent cared for [X] on a full time basis.
The applicant met the respondent and [X] at about Easter time 2007, when [X] was 6 years old.
The respondent left [X] in the care of the applicant in November 2007, so that the respondent could move to South Australia to complete a program, Teen Challenge, for 12 months. At that time, the respondent was struggling with gambling and alcohol abuse.
At the time [X] came into the applicant’s care, she and her husband were living in [C] and [X] attended [C] Primary School.
The applicant has been receiving Centrelink benefits for [X]’s care.
Since November 2007 the respondent made weekly telephone calls to [X]. The applicant said that there were a few weeks that telephone time did not occur for various reasons. She did not say what the reasons were. The respondent said that on several occasions the applicant refused her telephone time with [X] because [X] had misbehaved.
At Christmas time 2008 the respondent came to Tasmania to visit [X] for one week. She stayed with the applicant.
In about January 2009 the applicant moved to the northern suburbs in Hobart. [X] was enrolled in and attended the [N] School. The applicant did not inform the respondent of [X]’s change of residence.
In December 2008 and in late January 2009, according to the respondent, and on 9 February 2009, according to the applicant, the respondent informed the applicant that she was travelling to Tasmania and planning to leave Tasmania with [X] on 20 February 2009 to take her back to Adelaide.
The respondent arrived in Hobart on 10 February 2009 and stayed with her father in [M]. She tried to contact the applicant. She was told by Pastor F that the applicant had moved, but did not know her new address.
The applicant sought legal advice on 18 February 2009. She instructed her solicitors to write to the respondent to inform her that she did not think it was in [X]’s best interests to be uprooted to live in an unknown situation, with unknown persons, to attend an unknown school, and live in unknown premises with a person who has not actively participated in her care since November 2007. The respondent was asked in a letter to attend a family dispute resolution conference at the Legal Aid Commission on 22 February 2009.
On 27 February 2009, the applicant received a letter from “Teen Challenge” in South Australia enclosing details of the respondent’s support proposal and future proposal for the next 6 to 12 months including [X] in “Teen Challenge”, South Australia.
On 11 March 2009 a family dispute resolution conference took place at the Legal Aid Commission, Hobart. The applicant did not agree for the respondent to take [X] back to Adelaide. Interim orders were agreed whereby [X] would live with the applicant and spend time with the respondent each weekend for three hours at her father’s home. The respondent signed the consent orders but subsequently instructed her solicitor to withdraw her consent to them and they were not made by the Court.
The respondent did not spend time with [X] on Saturday 14 March 2009 for three hours as agreed at the conference. The respondent turned up at the change-over but the applicant did not attend.
On 16 March 2009 the respondent attended the police station to ascertain whether the police would assist her. She made a statement to the police. In it she said “I would like my daughter back as per the arrangement, however I think Ms Murray is avoiding that and keeping [X] away.” The respondent failed to mention that the parties had attended a family dispute resolution conference on 11 March 2009, at which she agreed on an interim basis for [X] to live with the applicant and for her to spend time with her three hours per week at her father’s home.
On Monday 16 March 2009, without the knowledge or consent of the applicant, the respondent attended [X]’s school with the Police to remove her and took her to Adelaide with her on 17 March 2009.
Matters in Dispute
The respondent stated that the applicant said words to the effect:
“that if I could arrange a place in the program she would look after [X] whilst I was in South Australia and when I completed the program [X] could return to me. Ms Murray said to me that I should go and get well and that when I finished the program to return for [X].” [10]
[10]Para 16 respondent’s affidavit
The respondent said that when she was in Tasmania in December 2008, she told the applicant that she would be completing the Teen Challenge program in February 2009 and that arrangements would be made for her to have independent accommodation outside of the rehabilitation facilities. She told the applicant that she would be able to have [X] to live with her because she would be living in independent housing. She told the applicant that her involvement in the program would be that she would attend some re-entry sessions which would take place during school hours. Finally, she said that prior to leaving Tasmania on
30 December 2008 she told the applicant that she would be back to collect [X] in February 2009. “The applicant did not say anything and looked quite withdrawn.” [11]
[11] At paragraphs 29, 30 and 31
The applicant disputed that she was of the understanding that [X] was only to be in her care whilst Ms Gallagher completed a twelve month program with Teen Challenge.
The applicant stated:
“I understood that upon Ms Gallagher’s rehabilitation there would be a reunification program whereby Ms Gallagher would return to Tasmania, spend some time with [X], re-establish a bond and parenting role with her and in time reintegrate back into
Ms Gallagher’s care. [X] has become part of our family. The proposal that [X] go to South Australia to live in the Rehabilitation Centre was news to me in February, 2009. I did say that I would be happy for [X] to live with Ms Gallagher again but I did not believe it would be straight away, and that was provided that Ms Gallagher was fit to care for and parent [X] and that was said before I knew that Ms Gallagher and the Church were planning to take [X] to South Australia.”[12]She also said:
“I have no doubt that [X] would have been pleased to see her mother. I did not want to prevent the mother from spending time with [X] but I did want it to occur in a manner which was safe for [X], and without the threat that [X] would be whisked away.”[13]
The applicant therefore understood that [X] would be returned to the respondent’s care and she would be happy for [X] to live with
Ms Gallagher again. Her complaint is that she did not believe it would occur straight away and it was on the basis that the respondent was fit to care for and parent [X]. She was also opposed to the respondent taking [X] to South Australia.
[12] Applicant’s affidavit 32 (g)
[13] at paragraph 44
The applicant said that [X] is stable in her care. When she came into the applicant’s care in November 2007 she had sleeping issues, head lice, and was engaged in self harm, biting and pinching herself. She took [X] to Dr S to prescribe medication to help [X] sleep and keep her calm. The respondent disputes that [X] is in a stable environment because in early 2009 the applicant changed [X]’s accommodation and school.
The respondent described her independent accommodation. She provided a letter from the owner of the apartment, the Lutheran Community Housing Support Unit Inc, which indicated that she has been offered a lease of the apartment at [address omitted]. The affidavit of Ms H confirmed that the apartment is independent. The applicant disputed that this accommodation is independent of the rehabilitation centre.
Discussion
The applicant moved house in early 2009 and did not tell the respondent. No reason was given for her not telling the respondent. The respondent could not find [X]’s whereabouts when she arrived in Hobart on 10 February 2009.
The applicant did not allow the respondent to see [X] from 10 February 2009, when she arrived in Tasmania. Even though it was arranged, at the family dispute resolution conference, for the respondent to see [X] on 14 March 2009, that did not occur. So for over a month, the respondent did not see [X] whilst in Tasmania, apart from attending at [X]’s school. The applicant only agreed for [X] to spend time with the respondent for three hours per week on a supervised basis. In respect of the school, the applicant’s solicitor’s letter to the respondent said:
“…we suggest that school is a place for learning and socialising with other children of like age, not an appropriate environment to be used as a conduit to access a child to either spend “time with” or remove from their placement. We ask that you and/or your advocates desist from such behaviour and in lieu direct correspondence for Ms Murray in relation to [X]’s care through us…”[14]
Not only did the applicant restrict the respondent’s time with [X] to three hours per week, she opposed the respondent seeing her daughter at her school. The applicant says that she has [X]’s best interests in mind, however, in my view, these actions are not consistent with this.
[14] annexure “BB” applicants affidavit
The respondent unilaterally removed [X] from the care of the applicant. She agreed at the dispute resolution conference on 11 March 2009 for [X] to live with the applicant on an interim basis. In the signed agreement, it was noted that the parties agreed to attend a further family dispute resolution conference in about four weeks time. The respondent agreed to spend time with [X] each Saturday between
12 noon and 3.00pm at her father’s home and at such further times as agreed, provided that the respondent’s father was present at all times and [X] was not to be brought into contact with Pastor C.
The respondent’s time with [X] was to commence on 14 March 2009, however the applicant did not present [X] at the hand-over place agreed.
It is understandable that the respondent became upset when [X] was not presented on 14 March 2009 for the agreed time. However, her actions in making a statement to the police and not referring to the agreement reached between her and the respondent, and then attending [X]’s school and unilaterally removing her and taking her back to Adelaide was not, in my view in [X]’s best interests. The appropriate action was for the respondent to further negotiate with the applicant, and failing successful negotiation to file an application in the court.
As I have indicated, I am required to make orders which are in the best interests of [X]. I turn to the relevant s.60CC factors. It is difficult to deal with these factors in any detail due to the haste in which the application and response were prepared, with much focus on the events taking place between early February and 17 March 2009, rather than the matters contained in s.60CC.
Section 60CC(2)(a)
The proposal of the applicant will not enable [X] to have the benefit of a meaningful relationship with the respondent. Her interim application is that [X] live with her and that [X]’s time with the respondent be reserved. She is asking for [X] to be returned from Adelaide to Hobart. The respondent lives in Adelaide so that unless she moves to Hobart the respondent will not be able to spend time with [X]. The proposal of the respondent will also not enable [X] to have a meaningful relationship with the applicant.
Section 60CC(2)(b)
The applicant referred to the difficulties the respondent was having in 2007. The respondent recognised her problems with alcohol and gambling and she attended the program in Adelaide. She said she has addressed those issues, although there is no medical evidence at this stage to confirm this. The respondent stated that there has never been any involvement by child protection authorities in relation to her care of [X]. The respondent described the time she spent with [X] at Christmas 2008. The applicant at paragraph 44 says “I have no doubt that [X] would have been pleased to see her mother. I did not want to prevent the respondent from spending time with [X]…”.[15]
[15] Respondent’s affidavit 55, 63, 28 and 44
The applicant said that when [X] came into her care in November 2007 she had sleeping issues, head lice, self harm, biting and pinching herself. The respondent has not denied this. She has denied that when [X] came into the applicant’s care that she had one pair of underpants and a piece of clothing that were either too small or too large for her. As the respondent has not denied this, it raises some concerns about the respondent’s care of [X] prior to her attending the “Teen Challenge” program. However, the applicant has raised no concerns about the respondent’s time with [X] at Christmas 2008 and about her behaviour and parenting during the week she spent with her and [X] in December 2008.
I can not find, at this stage, that there is a need to protect [X] from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Section 60CC(3)(a)
Ms H said that [X] said to her “Finally I get to live with mum and I don’t have to live with Aunt [first name omitted] anymore.”[16] The respondent said that [X] told her “I want to come and live with you.”[17]
[16] Affidavit of Ms H paragraph 21
[17] Respondent’s affidavit paragraph 28
[X] is seven years of age and it is not surprising that she would be happy to live with her mother. However, this must be considered with all the factors.
Section 60CC(3)(b)
The applicant said that she and [X] have established a strong bond and that [X] has become part of her family.
[X] has been cared for by the respondent since her birth, apart from the period of November 2007 to March 2009.
Section 60CC(3)(c)
I refer to paragraphs 36 and 37 of these reasons. I have a concern about the willingness and ability of the applicant to facilitate a close and continuing relationship between the respondent and [X]. There is not sufficient evidence for me to form a view about the respondent’s willingness and ability to facilitate a continuing relationship between [X] and the applicant, except that by unilaterally relocating she has prevented the applicant from spending time with [X].
Section 60CC(3)(d)
The applicant’s proposal will not allow the respondent to spend time with [X], neither will the proposal of the respondent.
Section 60CC(3)(e)
Both proposals of the parties will make it difficult for the other party to spend time with [X].
Section 60CC(3)(f)
The applicant has the capacity to provide for the physical needs of [X]. I am not able to make a finding as to whether she can provide for the emotional needs of [X]. In respect of the respondent, I have some doubts as to her capacity to provide for [X]’s needs in the past, due to [X] having sleeping issues, head lice and engaging in self harm, biting and pinching herself when she came into the applicant’s care in November 2007. This is not to say that she now does not have a capacity to provide for [X]’s needs. Again, I am unable to make a finding and this needs to be investigated.
Conclusion
In my view, it is in the best interests of [X] to return to Tasmania where she was residing prior to the unilateral relocation of her by the mother. She was in a stable environment living with the applicant and attending school. This will enable all the issues to be properly investigated and dealt with at trial, when the evidence can be properly tested by cross-examination.
In my view it is in [X]’s best interests that she continue to spend regular time with the respondent if she returns to Tasmania with [X]. I am of the view that if the respondent remains in Tasmania that [X] have substantial and significant time with her to enable their bond to be re-established. I will hear the parties as to what time each proposes before I make an order. I intend to make an order that [X] continue to live with the applicant until the trial and that she attend [N] School. I do not intend to make an order for sole parental responsibility on an interim basis. Pursuant to section 65DAE the parties will not need to consult on issues that are not major long-term issues. I will order that a family report be prepared, that an Independent Children’s Lawyer be appointed for [X] and that the trial of the matter be expedited and heard on 14 and 15 May 2009.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of FM Baker
Associate: Sita Buick
Date: 30 March 2009
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